June 04, 2021
Gwynne Wilcox, a union-side labor and employment attorney nominated for the vacant Democratic National Labor Relations Board seat, could lead the Board’s efforts to expand joint employer liability while facing a slew of ethics and recusal questions.
As an attorney, Wilcox brought a case on behalf of the Fight for $15 group against McDonald’s before the NLRB, alleging that the company was liable for violations occurring at various franchise restaurants under a theory of joint employer liability. The lengthy proceedings became a flashpoint in the debate over joint employer liability and the extent to which large corporations can be held accountable for the actions of their franchisees, suppliers, and other third-party relationships.
Under the Trump administration, the Board reinstated the traditional standard for joint employer liability, under which an employer is liable only where it actually exercises direct and immediate control over another employer’s workers. Once a Democratic majority is established at the Board later this fall, it is likely to target this standard and extend liability to situations in which an employer has only theoretical or indirect control.
Given her work on the McDonald’s case and others, Wilcox may face ethics questions that ultimately may require her to recuse herself in any major joint employer case before the Board. “Her nomination is all about conflicts and recusals, and joint employer is going to be right at the top,” said Roger King, Senior Labor & Employment Counsel at HR Policy.
Outlook: Given the many potential conflicts and recusal issues surrounding Wilcox’s appointment, she will likely face significant opposition to her confirmation from Senate Republicans. If confirmed, however, Wilcox represents yet another Biden administration official with significant ties to organized labor. As in a number of other areas, a Democratic Labor Board featuring Wilcox will likely act quickly to undo the previous Board’s joint employer rule and replace it with a much more expansive standard.